Analysis: Enrica Lexie Case

FACTS

The Italian Enrica Lexie is a privately owned tanker which sailed from Singapore to Djibouti in 2012. It had on the tanker an ‘Italian Vessel protection department ‘which was an Italian contingent since the International Maritime Organization declared the high seas of Kerala waters subjected to major problem of piracy. On 15th February 2012, a fishing boat of Kerala named ‘St Antony’ which was about 20.5 nautical miles from the coastline happened to cross ‘Enrica Lexie’ Two Italian men namely Sergeant Massimiliano Latorre and Sergeant Salvatore Girone were on board of Enrica Lexie. The events that transpired following the warning of VPD. It saw a fishing ship as a threat and considered them to be pirates on their way to hijack. They assessed that the fishing vessel was on collision course of the tanker and the modus operandi was a pirate attack.

Though they were warned to change their course but in vain leading to open fire. The firing led to the instant death of the Indian fishermen namely Valentine Jelastine and Ajeesh Pink. The open fire also wrecked the fishing vessel and endangered the life of 9 other fishermen. The Italian vessel proceeded about 38 nautical miles after the open fire where they were contacted by Maritime Rescue Co-ordination Centre and was caught by the Indian coast guards. They were charged of murder (Section 300 of The Indian Penal Code), Mischief (Section 425 of The Indian Penal Code). A charge was initiated against them in Kerala High court and the mariners petitioned against it. Italy later took the case to The United Nations Convention on the Law of the ocean (UNCLOS) and them to Permanent Court of Arbitration.

ISSUES

  1. Whether the two Italian mariners be convicted for murder of Indian fishermen under the jurisdiction of Indian courts as per the Indian Penal Code?
  2. Whether Sovereign Immunity is applicable to the Italian Mariners?
  3. Whether India has in all probability violated the International conventions and whether India is entitled for compensation?

ARGUMENTS BY THE PETITIONERS

The petitioners claimed their innocence by stating that they were not involved in the act of murder of the attempt of murder as alleged due to their responsibility towards the security forces. They argued that, they deemed the fishing vessel to be a threat and as a covert attempt by the pirates. Despite the continous warnings (flags, horns, flashlights), the vessel did not change its course. A security signal was also sent to intimate the Indian navy still all in vain. The petitioners claimed that the very incident occurred in the contiguous zone (Exclusive economic zone) that did not touch the Indian waters and was far beyond the territorial region.

They contested India’s claim over the jurisdiction stating that according to section 4 of the Indian Penal code, India can claim jurisdiction in those criminal issues that predominately occurred in the territory of India and was limited to the citizens of India. Since the mariners were of Italian origin, Indian courts did not have any exclusive jurisdiction. The Petitioners claimed that they had the liberty to navigate according to Article 87(1) a of UNCLOS 1982, That gives them the authority to travel the seas without any external interference by other body. The major issue contended by them was that the mariners were assigned an official duty and were having sovereign immunity.

They must be given functional immunity in furtherance of the provisions of UNCLOS. The petitioners also claimed that according to Article 97 of The United Nations Convention on the Law of the ocean(UNCLOS),only the flag state of the particular ship can initiate penal proceedings in the matter of ships in the high seas  as the flag state hold full jurisdiction of the  maritime vessel( 217 UNCLOS) .The petitioners alleged that Indian authorities acting by coercion and power intercepted the vessel in international waters and forced it to change its course .They also contended that according to Maritimes Zones Act, 1976, use by foreign ships of the territorial waters is allowed unless they are warships. Lastly, they contended that there was an ongoing investigation started in Italy so there need not to be any proceedings in India.

ARGUMENTS BY THE RESPONDENTS

The respondents firstly contended the claim of sovereign immunity of the Italian mariners stating that they were under the duty of commercial activities of a private company and not executing their sovereign function. It only applies to those who work under the government function They argued that the incident occurs in the Contiguous zone, thus they are entitled to exercise sovereignty. The main contention of the respondents was that the crime occurred when the position in the of the tanker was 20.5 nautical miles from the baseline of India and it occurred in the high seas and not on territorial waters thus totally nullifying the petitioner’s contention and enforceability of Article 97 of UNCLOS.

The respondents emphasized on the applicability of Article 32 and Article 56 of UNCLOS as these would give India jurisdiction to go further with the trial of the mariners as these laws uphold the law and order in the coastal state in the EEZ. The respondents alleged that the Italian mariners were responsible of merciless killing of the fishermen as the Kerala coast did not have piracy incidents in the past and fishing vessels were quite frequent in those waters.

The respondents also claimed that the fishing vessel was at the reasonable distance from the tanker and there was not any imminent danger from the fishermen as they did not prove to be dangerous to the tanker. It was argued that the VPD fired without any cautious approach and the firing was deemed unnecessary as it is always considered the last resort to pacify danger. Contrary to the claims of the petitioners, there weren’t a sign to the fishermen to change their course and the flashlight usage was not successful in broad daylight. The respondents mainly followed the precedent of S.S Lotus (France v. Turkey) stating that they have jurisdiction.

JUDGEMENT OF THE KERALA HIGH COURT

The High court stated that the two Italian mariners are liable and can be subjected to the Indian jurisdiction. They can be made liable under the Indian Penal code. The court also stated that as the crime occurred in the Indian coastal region, it has the liberty to encourage law and order and do what deem necessary to uphold the rights of India and its citizens. The court denied all of the Italy’s contention by stating that killing of the fishermen was on the face of it gruesome. The court said that the Italian vessel was undertaking a commercial activity instead of a sovereign function and thus the petitioners are liable to pay Rs 1,00,000 to both respondents.

JUDGEMENT BY THE SUPREME COURT OF INDIA

 The Supreme court of India reversed the judgement given by Kerala High court stating the issues with jurisdiction, the apex court further authorized to constitute a special court to deal such international cases. The court stated that any provisions of IPC or CrPC did not give the jurisdiction to Kerala to try an offence as it is just a part of India but would give the jurisdiction to Union of India. It stated that as the mariners belonged to royal navy of Italy, the dispute of any kind concerns the Republic of Italy.

NOTE– (Post the judgment, India initiated proceedings under the Suppression of Unlawful charges (SUA), though later the charges were dropped.

CASE BEFORE THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)

Italy on June 2015 instituted proceedings against India in the international arbitration tribunal and informed India with a written notice for the same. It sought the tribunal help to thwart India to constitute any trial and take any judicial measures against the two Italian mariners. It also claimed to send both the mariners back to Italy. India on the other hand claimed that to let the mariners leave, Italy needs to exhaust all the remedies mentioned under the provisions of ITLOS.

However, ITLOS, promoting the peace-keeping ideology submitted that both the countries should suspend any penal proceedings on immediate basis and shall stop any future conviction and aggravate the situation. Though the arbitration tribunal rejected Italy’s request to release the mariners as the case had already been adjudicated.

\AWARD BY THE PERMANENT COURT OF ARBITRATION.

The PCA stated its claim over the jurisdiction as both India and Italy were signatories of UNCLOS. The tribunal stated that Italy has breached India’s right to navigation by firing at the fish vessel St. Antony. It also stated that Italy is liable for compensation for the loss of life of Indian fishermen and India did not violate Article 97 and 87 or 100 of UNCLOS. Though the court directed India to refrain any proceedings against Italy while giving the mariners immunity.


Author: Anukriti Rastogi and Shivam Shukla from Institute of Law, Nirma University, Ahmedabad.


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